Preservation

By now, most litigators should know that they have an affirmative duty to advise their clients about the duty to preserve potentially relevant documents. Despite this, the United States District Court for the Southern District of New York recently denied an attorney defendant’s motion for summary judgment in part because the record was not clear as to whether the attorney defendant fulfilled its obligations with respect to the duty to preserve.

Eleven years into the court order levied on the NSA to preserve backup tapes containing data about the NSA surveillance efforts, it’s come to light that the NSA failed to take adequate steps to ensure the data was not deleted. Tapes containing data between 2001-2007 were deleted in 2009, 2011, and 2016, showing a systemic…

A trial court opinion involving allegations of spoliation of text messages on a mobile phone in the Southern District of New York has gotten attention because of the application of legal preservation standards. Ronnie Van Zant, Inc. v. Pyle 2017 BL 3018, S.D.N.Y. 17 Civ. 3360 (RWS), 8/23/17) is an interesting read, not just because it involves odd characters, intrigue and drama surrounding one of the greatest Southern Rock bands of all time. It also includes some instructive information about the application of the “practical ability” test for preservation, and the uphill battle for witnesses who lose credibility in testimony about what they did and did not do in a preservation effort.

Not long after the tragic plane crash that resulted in the deaths of Lynyrd Skynyrd lead singer Ronnie Van Zandt and his co-founding band member Steven Gaines, Artimus Pyle, the former drummer, entered an agreement with the surviving heirs and other members of the band. The agreement involved promises to never perform as “Lynyrd Skynyrd,” or to generally profit from the name of the band or the tragic deaths of Van Zant or Gaines without approval of the original parties to the agreement. Their dramatically named “blood oath” agreement was more concretely memorialized in a Consent Order in 1988, following other litigation, which Pyle signed.

Over 20 years after the 1988 Consent Order, the drama that spawned the litigation began in a story that sounds like it came from a Netflix mini-series. A film director named Jared Cohn, who worked under contract for an independent record label-turned movie producer, Cleopatra Records, Inc. (“Cleopatra”) reached out to Pyle about making a movie centered around the band and Pyle’s life in it. Cohn was hired by the founder and co-owner of Cleopatra Records, Brian Perera, who is another interesting character in his own right. Pyle met and consulted with Perera on multiple occasions about ideas for a film generally depicting his life and the plane crash, which Pyle survived. In their first conversations, Pyle did not mention the 1988 Consent Order, but the Order eventually was delivered to Cleopatra. The copy of the Order was also eventually followed by a “cease and desist” letter and other correspondence from the Plaintiffs’ counsel. All the while, Cleopatra’s movie production work continued.…Continue Reading

Karla Morrison, a former employee of the medical practice Charles J. Veale, M.D., P.C. sued her employer in October of 2014 alleging that the practice violated the Fair Labor Standards Act. Following the close of discovery in August of 2016, the defendant filed a motion for sanctions for spoliation of evidence alleging that Morrison logged into her office email account after her termination and deleted emails from the account. The defendant bolstered this argument by alleging that Morrison added 2-step verification to her log-in process in April 2015 – almost 6 months after her termination. Morrison admitted to accessing her office email days after her termination to “close out” items, but denied any further use of the account.

For those unfamiliar, 2-step verification is an additional security measure that confirms a user’s identity through two components, usually a password followed by a code sent to a personal device, for example. When in place, it adds an additional level of security to an account, thus making it less susceptible to hacking. …Continue Reading

About Seyfarth's eDiscovery and Information Governance Team

Seyfarth Shaw’s eDiscovery and Information Governance (eDIG) attorneys dedicate 100% of their practices to eDiscovery and information governance issues, advising and litigating on these complex matters efficiently, effectively and creatively. Seyfarth is one of the few law firms with a truly dedicated eDiscovery practice group — one that began well before the Federal Rules of Civil Procedure were amended in 2006. We bring experience and talent to craft practical and defensible approaches to meet discovery obligations in litigation to comply with statutory and regulatory rules while managing the costs and the realities of operating a business in today’s economy. We have worked with some of the country’s largest companies on eDiscovery issues in specific major litigation as well as broader strategic approaches to eDiscovery.